Elements of a DUI

Pennsylvania DUI: Statutory Law Basics

Before you can understand the Pennsylvania DUI statute you must understand the basics of Pennsylvania statutory law. Statutes are laws written by the legislative body, the Pennsylvania General Assembly. In criminal law crimes are defined or spelled out by statute. In Pennsylvania, crimes are defined primarily in the Pennsylvania Crimes Code (Title 18) or the Pennsylvania Motor Vehicle Code (Title 75). The Pennsylvania DUI statute is found in section 3802 of the Pennsylvania Motor Vehicle Code. Section 3802 contains the precise definition of what constitutes a DUI in Pennsylvania. In order for the prosecution to convict you of a DUI it must prove each and every element of the statute beyond a reasonable doubt. You might ask, what is an element? The DUI statute can be broken down into pieces or segments. Those pieces or segments constitute elements of the crime. The prosecution must prove each and every piece of the statute. If a piece of the statute is not clear or open to interpretation the courts or lawyers may look to decisions by the courts in prior cases clarifying or interpreting the DUI statute.

Elements of a Pennsylvania DUI

In order for the Commonwealth to prove that you committed a DUI, it must prove each and every one of the following elements beyond a reasonable doubt:

  1. Highway or Trafficway Requirement
  2. Actual Physical Control of the Movement of a Vehicle
  3. Driving While Impaired
    1. Incapable of safe driving
      OR
    2. Driving while Impaired .08% to .099%
      OR
    3. Driving with a High Degree of Alcohol – .10% to 0.159%
      OR
    4. Driving with Highest Rate of Alcohol – 0.16% and above
      OR
    5. Driving Under the Influence of Drugs
      OR
    6. Combined Influence of Drugs and Alcohol

Highway or Trafficway Requirement

In order for a violation of Pennsylvania DUI statute to occur, the offense must take place on a "highway" or "trafficway." The general rule is that if the area is open to the public for purposes of vehicular traffic then that area will constitute a "highway" or "trafficway." On the other hand, areas not open to the public will not constitute a "highway" or "trafficway" for purposes of the DUI statute. For instance, drinking and driving in your back yard would not constitute a violation of the motor vehicle code, since your back yard is not open to the public for purposes of vehicular traffic.

"Highway" is defined in section 102 of the Motor Vehicle Code:

"Highway." The entire width between the boundary lines of every way publicly maintained when any part thereof is open to the use of the public for purposes of vehicular travel. The term includes a roadway open to the use of the public for vehicular travel on grounds of a college or university or public or private school or public or historical park.

"Trafficway" is also defined in section 102 of the Motor Vehicle Code:

"Trafficway" The entire width between property lines or other boundary lines of every way or place of which any part is open to the public for purposes of vehicular travel as a matter of right or custom.

Actual Physical Control of the Movement of a Vehicle

The DUI statute not only prohibits "driving" or "operating" a motor vehicle while under the influence, it also prohibits a person from being in "actual physical control of the vehicle." If you are driving while intoxicated and in control of the machinery of the vehicle you may be in "actual physical control" for purposes of the DUI statute. This means that your vehicle does not need to be moving in order to be prosecuted for a Pennsylvania DUI offense. You may be convicted of a Pennsylvania DUI while at the wheel of a parked car. However, the law does require that the engine be running. Courts will view each situation on a case by case basis and look at the totality of the circumstances. In order to play it safe and avoid a DUI prosecution, never get in the driver's seat of vehicle or start the vehicle if you are intoxicated.

Driving While Impaired

Incapable of Safe Driving – Under section 3802(a)(1) it is illegal operate a motor vehicle while under the influence of alcohol to a degree which renders the person incapable of safe driving. Under this provision the police do not have to prove a specific Blood Alcohol Concentration (BAC). If you refuse Chemical Testing, the government may still convict you under this theory. The government may prove this by providing evidence of "substantial impairment" of your judgment. For instance, the prosecution could allege at trial that you were driving recklessly, had an odor of alcohol on your breath, your speech was slurred, your eyes were glassy and you stumbled while attempting to exit the vehicle. It would be up to the finder of fact whether it be a judge or jury to determine if you were capable of safely driving your vehicle. You may also be convicted of a DUI in Pennsylvania if you have a BAC under 0.08%. For instance, if you had a BAC of 0.05% and showed additional signs of substantial impairment of judgment you may face a DUI prosecution in Pennsylvania.

Driving While Impaired – .08% to .099% – It is illegal in Pennsylvania to operate your vehicle with a BAC between .08% and .099%. The chemical test must be given within two hours of the offender's driving, operation or actual physical control of a vehicle.

Driving with a High Degree of Alcohol – .10% to 159% – It is illegal in Pennsylvania to operate your vehicle with a BAC between .10% and .159%. The chemical test must be given within two hours of the offender's driving, operation or actual physical control of a vehicle.

Driving with Highest Rate of Alcohol – .16% and above. It is illegal in Pennsylvania to operate your vehicle with a BAC of .16% and above. The chemical test must be given within two hours of the offender's driving, operation or actual physical control of a vehicle.

Driving Under the Influence of Drugs – Under section 3802(d)(1) of the Motor Vehicle Code, it is illegal in Pennsylvania to operate a motor vehicle with any amount of a schedule I or non–prescribed schedule II or III controlled substance or any metabolite of any such substance.

Driving Under the Combined Influence of Alcohol and Drugs – Under section 3802(d)(3) it is illegal in Pennsylvania to operate your vehicle under the combined influence of alcohol and a drug or combined influence of drugs which impairs your ability to safely drive

**Additional Provisions

Minors – Under section 3802(e) of the Pennsylvania Motor Vehicle Code it is illegal for Minors to operate a motor vehicle with a BAC of .02% or higher within two hours of operating the vehicle.

Commercial or School Vehicles – It is illegal to operate a commercial vehicle with a BAC of .04% or greater within two hours of operating the vehicle. It is illegal to operate a school vehicle with a BAC of .02% greater within two hours of operating the vehicle.